As reported by Law360, our firm recently argued before the Supreme Court of Georgia after the State of Georgia and the District Attorney of Gwinnett County appealed our injunction that prohibits the DA from raiding businesses that sell Delta-8-THC and other hemp extracts. While the State and the DA brought two appeals, one relating to the hemp extracts themselves and one relating to legal procedures, the justices were clearly more interested in the procedure.
Specifically at issue at our argument was whether a person who is threatened or harmed by government overreach, such as by the DA in this case, can bring a claim against the State of Georgia and an individual state official at the same time. For decades, the people of Georgia could not sue the state government until they voted to amend the Georgia Constitution to allow claims against the State seeking “declarations” that clarify a law or the legality of an official’s actions. Critically, you cannot seek an emergency injunction against the state under this new amendment—you can only get an emergency injunction against an individual official.
The State appealed our injunction by arguing that the new constitutional amendment prohibits people from bringing claims against individual officials and the State at the same time. If the Court’s agree with the State, it would restrict the people of Georgia’s ability to seek judicial protection from unlawful government conduct since they would either have to bring separate lawsuits against the State and the official or give up their right to seek an emergency injunction.
We argued forcefully for the people to have a robust right to seek judicial intervention when government officials act unlawfully or outside the scope of their authority. The Supreme Court will issue a ruling in the coming months that will govern hundreds of cases in the future and control what remedies the people of Georgia have from government overreach. Our firm is proud to be in the fight on the side of the people
Law360 (January 19, 2023, 4:28 PM EST) — Georgia Supreme Court justices took issue Thursday with an attempt by vape shop companies to block the state and an Atlanta-area district attorney from cracking down on the sale of cannabinoid products, indicating the way the case was pled might require its dismissal…
The relevant law, effective January 2021, waives sovereign immunity for declaratory actions against the state, its departments and employees exclusively in the name of the state or a local government body. It stipulates that such actions naming as a defendant any individual, officer or entity other than expressly authorized shall be dismissed.
“How is the action against the DA in their individual capacity expressly authorized under this?” Justice Charles J. Bethel asked Church. “How does that not trigger this provision that says that shall be dismissed?”
Church said the language doesn’t apply to an action against an official in their individual capacity…
Church said the waiver was intended to expand the right to sue, not restrict that right. He said forcing the companies to file two different lawsuits would be restrictive.
The justices also pushed back on that point, saying the waiver added to existing state law without taking away the ability to bring actions under another provision against officers in their individual capacities.
“Why is it not just the price of admission to avail yourself of this narrow constitutional waiver to follow exactly what the people of Georgia said in this text that the General Assembly passed?” Justice Warren asked.
Church responded that a plaintiff doesn’t have to avail themselves of the provision when suing an individual capacity defendant. He said the relief sought against the district attorney in her individual capacity is discreet and different from the declaratory relief sought against the state, to which the provision applies.
“I think you’re just making an argument of why they shouldn’t have been brought together in the first place if they’re so different,” Justice Warren said.
Church said a plaintiff shouldn’t have to go “county by county” to get relief against state officials trying to crack down on the sale of Delta-8 and Delta-10 products in their areas…
The cases are The State et al. v. SASS Group LLC et al., case number S22A1243, and The State et al. v. SASS Group et al., case number S22A1244, in the Supreme Court of Georgia.”
“January 24, 2023 at 05:55 PM…State attorneys want to see a lawsuit filed by a pair of hemp-product retailers against Georgia and an individual district attorney go up in smoke.
Appealing several Fulton County Superior Court decisions surrounding the complaint to the Supreme Court of Georgia, Solicitor General Stephen J. Petrany argued the appellees’ complaint should have been tossed on sovereign immunity grounds after it named Gwinnett County District Attorney Patsy Austin-Gatson in its complaint seeking declaratory relief from the state.
“Since it’s all done in one action, it should be dismissed,” Petrany said.
Representing SASS Group LLC and Great Vape LLC, appellee counsel Thomas D. Church of the Church Law Firm in Roswell countered his clients didn’t need to file two separate actions under the Georgia Constitution since the “joint actions have common questions of law or fact.”
Two months after Austin-Gatson issued a January 2022 press release threatening prosecution for businesses possessing, selling or distributing products containing cannabinoids—including Delta-8-THC and Delta-10-THC—SASS Group and Great Vape sued the DA, in her individual capacity, and the state.
The plaintiffs sought an interlocutory injunction barring the district attorney from taking criminal enforcement action, or pursuing civil asset forfeiture against them for selling hemp-derived products containing cannabinoids.
The state motioned to dismiss the plaintiffs’ lawsuit on grounds they’d improperly applied the constitutional waiver of sovereign immunity in their pursuit of Austin-Gatson.
But Fulton County Superior Court Judge Chuck Eaton instead granted the plaintiffs’ temporary restraining order against the district attorney’s enforcement.
Ten months later, the solicitor general appeared before the Supreme Court of Georgia arguing the trial court’s failure to dismiss the appellees’ complaint, as motioned for by the state, had been in error….
Petrany argued that, because the appellees sued both the state and the district attorney in her individual capacity, the provision called for the action to be dismissed.
“Contrary to the plaintiffs argument, ‘action’ here means … a suit or a case not a claim or a cause of action,” Petrany argued. “So you can’t maintain a single claim against the State and other claim against someone else and comply with this provision. That’s still one action that has to be dismissed.”
Across the aisle, Church countered the appellees’ claims involved separate, consolidated actions with common questions of law or fact.
“The district attorney issued this press release and started conducting raids,” Church argued. “Facing an imminent, discrete threat from the district attorney, the plaintiffs in this case brought two consolidated actions in superior court. These were two distinct actions against two distinct defendants seeking distinct remedies.”…
The response prompted a rebuttal by Bethel.
“When you go to superior court, which is where these things must be filed, and you file a suit … it gets a ‘civil action number.’ It doesn’t get assigned a ‘civil actions number,’ it gets a ‘civil action number’ because it’s an action. That’s the way lawyers in Georgia, and really the Western world, think about a suit being filed. It’s a civil action,” Bethel said. “You filed an action, and on the defendant side you listed somebody not covered by paragraph 5 [of the constitutional waiver of sovereign immunity]. It seems to me that that says that should be dismissed.”
However, Church disagreed.
“That only works if your read the word ‘action’ like the state is, which is in isolation,” Church argued. “It’s not just actions, it’s a very specific type of action.”
